The ALRC report Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence out yesterday states -
Recommendation 1
In the context of the significant under-reporting of sexual violence, and to ensure people who have experienced sexual violence are able to engage with the justice system in a safe, informed, and supported way, the Australian Government, together with state and territory governments, should fund relevant organisations (including sexual violence services, community legal centres, Aboriginal Community Controlled Organisations, Legal Aid Commissions, and participating legal firms) to provide the following three services (Safe, Informed, and Supported Services, or SIS Services): a. Independent Legal Services — for every person who has experienced sexual violence, the provision of a free and confidential legal advice session that enables informed decision-making about whether or not to engage with the justice system and, if so, which justice pathways best suit their needs, including referral to any chosen pathway. For ongoing legal advice and representation in the criminal justice context, see Recommendation 9. b. Justice System Navigators — for every person who has experienced sexual violence, support to access any chosen justice pathway; and for people who choose to pursue a criminal justice pathway, the provision of a trained support person to advocate and provide support in initial and ongoing interactions with police, prosecutors, the court, and related systems. c. Safe Places to Disclose — for every person who has experienced sexual violence, the ability to disclose the harm to trauma-informed professional staff, receive support and assistance to access relevant health and social services, and be referred to the Independent Legal Services. To diminish barriers to engagement, increase accessibility and address diverse needs, SIS Services should be provided through a network or other form of coordination, and be available when and where they are needed, including in-person, via telephone, online, and through outreach services.
Recommendation 2
The Australian Government should commission a national inquiry to address the impact of factors such as: a. mandatory sentencing provisions; b. sentencing discount regimes; and c. consequences following conviction (such as sex offender registration) on sexual offence matters proceeding to trial rather than resolving via guilty pleas, and measures that may promote early resolution. The inquiry should have regard to the importance of just outcomes for accused persons, people who have experienced sexual violence, and the broader community.
Recommendation 3
The National Judicial College of Australia should be funded to manage and staff an ongoing research team and, in consultation with heads of jurisdiction in each of the trial courts that hear most sexual offence matters (District Courts in New South Wales, Queensland, South Australia and Western Australia; the County Court in Victoria; and the Supreme Courts in the Australian Capital Territory, Northern Territory and Tasmania), locate a member of the research team in each of the trial courts to coordinate the building of a shared evidence base by supporting the evaluation of reform measures implemented in trial courts to improve responses to sexual violence, including: a. research and evaluation projects regarding reform measures implemented in trial courts to improve responses to sexual violence, including: i. jury directions to address myths and misconceptions (including the implementation of the Model Jury Directions Bill) (Chapter 8, Recommendation 21); ii. the calling of expert evidence to address myths and misconceptions (Chapter 8, Recommendations 23–25); iii. iv. v. vi. vii. viii. recorded police statements (Chapter 9, Recommendation 29); pre-recorded evidence hearings (Chapter 9, Recommendations 28–30); intermediaries (Chapter 10, Recommendation 31); ground rules hearings (Chapter 10, Recommendation 32); specialist lists (discussed in Chapter 4); measures to reduce delays (such as case management programs) (discussed in Chapter 4); and ix. measures to support the delivery of victim impact statements (Chapter 10, Recommendation 34); b. c. d. e. research and evaluation projects regarding the practical operation of relevant legislative provisions, including provisions that address: i. access to a complainant’s personal, sensitive, or confidential information (including access to a complainant’s sexual assault counselling communications) (Chapter 12, Recommendation 43) and the involvement of an independent legal representative to represent complainants in applications for access to that information (Chapter 6, Recommendation 9); ii. the cross-examination of complainants by unrepresented accused persons (Chapter 12, Recommendation 42); iii. the admissibility and use of complaint evidence and distress evidence (discussed in Chapter 19); iv. the admissibility and use of tendency and coincidence evidence (discussed in Chapter 19); v. vi. the availability and use of interpreters (Chapter 10, Recommendation 33); the admissibility and use of sexual history and sexual reputation evidence (Chapter 12, Recommendation 44–45); and vii. elections for juryless trials in sexual assault trials (discussed in Chapter 19); research and evaluation projects regarding: i. the impact of vicarious trauma upon trial judges who preside over sexual assault matters, including measures to address that trauma (discussed in Chapter 4); ii. affirmative models of consent (to be conducted by the Australian Institute of Criminology) (Chapter 11, Recommendations 35–37); iii. section 41 of the Evidence Act 1995 (Cth) and whether it is reducing improper questioning and increasing appropriate judicial intervention (as commissioned by the Standing Council of Attorneys-General) (Chapter 12, Recommendation 41); and iv. the practical operation of confidential communication and sexual assault counselling privilege provisions (including the adequacy of current subpoena processes) and identification of areas of improvement (as commissioned by the Standing Council of Attorneys-General); nationally standardised and ongoing data collection and statistical analysis on sexual violence matters in the courts (Chapter 5, Recommendation 5); the involvement of the courts in consultations to formulate a Model Jury Directions Bill addressing myths and misconceptions in sexual violence trials (Chapter 8, Recommendation 21); f. g. the analysis of annual reports tabled in parliament regarding feedback made by complainants of sexual violence about their experiences of the criminal justice process for the information of judicial officers (Chapter 5, Recommendation 6); court responses to requests from Attorneys-General for feedback on proposed legislative amendments relating to sexual violence laws and court processes; and h. court responses to requests from law reform bodies about sexual violence. The National Judicial College of Australia should convene national meetings of the research officers, nominated judicial officers from each of the trial courts, and representatives of the Judicial Commission of New South Wales and the Judicial College of Victoria, to ensure effective research planning, judicial education delivery, information sharing, and best practice identification. Note: The National Judicial College of Australia and its research team may conduct some of the research and evaluation projects listed above, but will primarily support other research organisations or individuals to conduct those projects, including by being their principal point of contact with the courts and, for example, facilitating requests to the court for access to information (including access to data, transcripts, and hearings).
Recommendation 4
State and territory governments should each establish and fund an independent taskforce within 12 months of this Report to: a. undertake an initial review of all reports of sexual violence made to police within the prior 12 to 18 months that did not progress to charge and publish a report of its findings and recommendations (modelled largely on the Sexual Assault (Police) Review in the Australian Capital Territory); b. develop a model for an independent, ongoing review mechanism for all reports of sexual violence that the police do not progress to charge that publishes reports at appropriate intervals (and the model to be implemented within 24 months of the report published by the initial taskforce); and c. develop a model for an independent, ongoing, and complainant-initiated review mechanism to enable complainants of sexual violence to seek a review of the police decision not to progress to charge in their case (and the model to be implemented within 24 months of the report published by the initial taskforce). The taskforce and models should include specialist and diverse sector expertise (including sexual violence services, representatives from Aboriginal Controlled Community Organisations, and researchers with a mixed set of disciplinary skills and expertise) as part of its membership. The initial review will, among other things: identify systemic reasons for attrition and make recommendations to address those reasons; identify and recommend any individual cases to be further investigated; and accept self-referrals from complainants whose matters did not proceed to charge at any time up to the commencement of the review. The ongoing review mechanism, for all reports of sexual violence that the police do not progress to charge, will operate as a rolling review of all reports of sexual violence which the police do not progress to charge; monitor attrition levels, systemic reasons for attrition and compliance with recommendations; make ongoing recommendations to address systemic issues; and recommend any specific cases be re-investigated. Governments should ensure information-sharing frameworks are in place to enable the reviews and respond to the initial review report and ongoing reports released by that review mechanism.
Recommendation 5
The Standing Council of Attorneys-General should commission the Australian Bureau of Statistics, or other appropriate body, to devise a nationally consistent data collection framework for reports of sexual violence as they progress through the criminal justice system, and provide appropriate funding and support to police agencies, Offices of the Directors of Public Prosecutions, and courts to implement that framework to obtain nationally consistent data regarding sexual violence cases that: a. b. c. are reported to the police; do not proceed to charge; are charged but otherwise discontinued by police before referral to Offices of the Directors of Public Prosecutions; d. are discontinued by Offices of the Directors of Public Prosecutions; e. f. g. h. are resolved by guilty plea; are the subject of convictions following trial; are the subject of acquittals following trial; and are the subject of an appeal against conviction, including the outcomes of those appeals. The data should: i. identify the reasons for reports not proceeding to charge or discontinuance of j. k. proceedings; capture timeframes on the progression of the reports through the system; include demographic information about groups who are disproportionately reflected in sexual violence statistics; and l. be published online annually.
Recommendation 6
Each state and territory government should establish and fund an independent centralised feedback mechanism for complainants of sexual violence to report their experience of the criminal justice system. The methods and formats (such as questionnaire development) for obtaining feedback should be considered in consultation with relevant stakeholders including Victims of Crime Commissioners, sexual violence service providers (including from Aboriginal Controlled Community Organisations), and people who have experienced sexual violence. The mechanism should be managed by Victims of Crime Commissioners, or an equivalent independent body. Victims of Crime Commissioners (or an equivalent independent body) should collate feedback with a view to identifying systemic issues in the criminal justice system and making recommendations to be published in an annual report which must be tabled in parliament. Each state or territory government should be required to respond to the annual report in their jurisdiction within a prescribed period.
Chapter 6
Recommendation 7
The Commonwealth, and those states and territories that do not currently have a legislated victims’ charter, should enact such a charter.
Recommendation 8
The Standing Council of Attorneys-General should commission an appropriately funded national review of victims’ charters to identify and consolidate a key set of rights for victims of sexual violence which should then be legislated in victims’ charters in the Commonwealth and all states and territories. Subject to the review, the key set of rights should include: a. Where police decide not to investigate or lay charges: i. the right to be informed by police about the right to seek reasons, and a review, of the decision; b. ii. the right to reasons for the decision; and iii. the right to a review of the decision. Where prosecutors decide to withdraw or otherwise discontinue all charges in relation to a prosecution: i. the right to be informed by prosecutors about the right to seek reasons, and a review, of the decision; ii. the right to reasons for the decision; and iii. the right to review of the decision. c. The right to request that the person interviewing them is of a particular gender, and to have that request accommodated where possible. d. The right to be informed of, and make use of, available flexible evidence measures and flexible arrangements for giving a police statement, evidence, and a victim impact statement. e. The right to be informed of alternative justice options (including civil justice, restorative justice, conciliation, and victims of crime schemes). f. The right to interpretation and translation, including for First Nations people who speak a language other than English. Victims’ charters should also require justice agencies to take into account, refrain from discriminating on the basis of, and be responsive to, the particular needs of groups who are disproportionately reflected in sexual violence statistics.
Recommendation 9
As a component of the Independent Legal Services recommended in Recommendation 1, the Australian Government, together with state and territory governments, should fund and support independent legal advisers who will be available to: a. provide complainants of sexual violence with legal advice as required during the criminal justice process; and b. represent complainants in court when applications are made to subpoena or inspect materials which may contain a complainant’s personal, sensitive, or confidential information (including sexual assault counselling communications).
Recommendation 10
The Commonwealth, states, and territories should amend relevant legislation to provide that independent legal advisers have standing to appear in court on behalf of complainants of sexual violence in applications to subpoena or inspect materials directed to third parties which may contain a complainant’s personal, sensitive, or confidential information, including sexual assault counselling communications. The legislative changes should include a mechanism which ensures the complainant is notified that a subpoena has been sent to a third party to produce personal, sensitive, or confidential information, including sexual assault counselling communications, relating to the complainant.
Chapter 7
Recommendation 11
People who work in the criminal justice system and have relevant involvement in sexual violence matters, including judicial officers (magistrates, trial judges, and appellate judges); court staff; prosecutors and in-house witness assistance officers; defence lawyers; and police officers, should receive: a. education about myths and misconceptions that utilises research on: i. trauma, memory, and responsive behaviour of complainants of sexual offences; and ii. sexual offending, grooming behaviour, and coercive control; and b. training about trauma-informed and culturally safe practices, including: i. best practice communication and engagement with complainants (including working with intermediaries and interpreters); ii. supporting the informed choices of complainants, including in relation to giving statements, flexible evidence measures, and giving evidence; iii. minimising retraumatisation in the justice system, including during questioning by police, prosecutors in witness conferences, and parties in court; iv. v. victims’ rights, including their rights to privacy and laws and processes about sexual assault counselling communications; responding with an understanding of the intersection between family violence and sexual violence; and vi. practices which address the experiences and needs of groups who are disproportionately reflected in sexual violence statistics. The education and training should: c. be evidence-based; d. e. inform and address the relevant organisation’s guidelines about myths and misconceptions and trauma-informed and culturally safe practices; and be developed with input from experts on trauma; memory and responsive behaviour of complainants of sexual offences; people who have experienced sexual violence; sexual assault services; and representatives of groups who are disproportionately reflected in sexual violence statistics.
Recommendation 12
Police agencies should mandate and be funded to ensure all police officers receive the education and training described in Recommendation 11, but tailored to reflect the tasks performed by specialist police officers and general duty police officers.
Recommendation 13
Commonwealth, state, and territory Offices of the Directors of Public Prosecutions should mandate and be funded to ensure that all employed solicitors, prosecutors, and witness assistance officers who work on sexual violence matters receive the education and training described in Recommendation 11 (tailored to reflect the tasks performed).
Recommendation 14
All courts should strongly encourage the education and training described in Recommendation 11 for court staff who work on sexual violence matters (tailored to reflect the tasks they perform).
Recommendation 15
State and territory bar associations and law societies should: a. strongly encourage barristers and solicitors who work on sexual violence matters to complete the education and training described in Recommendation 11 as part of ongoing professional development and training requirements; b. be funded to enable the provision of this education and training to barristers and solicitors for free or at a discounted rate; and c. collect and publish data on the number of participants who undertake this education and training.
Recommendation 16
Each court, through its head of jurisdiction, should strongly encourage all judicial officers (magistrates, trial judges, and appellate judges) who sit on sexual violence matters to undertake the education and training described in Recommendation 11. The National Judicial College of Australia, the Judicial Commission of NSW, and the Judicial College of Victoria should be funded to provide that education and training and keep records of attendances. Levels of attendance of judicial officers at education and training programs described in Recommendation 11 should be included in court annual reports.
Recommendation 17
The Law Admissions Consultative Committee (LACC) should ensure that education about myths and misconceptions research and trauma-informed and culturally safe responses to sexual violence (as described in Recommendation 11) are part of the current discussions between the six peak bodies (the Council of Australian Law Deans, LACC, Legal Services Council, Australian Law Students’ Association, Law 24 Justice Responses to Sexual Violence Council of Australia and the Australasian Professional Legal Education Community Ltd) around reforming legal education with a view to embedding that education within the curriculum of all law schools and practical legal education providers.
Recommendation 18
Federal, state, and territory police agencies should prepare or review and update their guidelines on responding to complainants of sexual violence to ensure that their guidelines address, at a minimum, the following matters: a. b. a requirement to log all complaints of sexual violence; processes for responding to complainants of sexual violence, including complainants who are within groups that are disproportionately reflected in sexual violence statistics; c. advising complainants prior to a formal interview of their right to seek independent legal advice and the availability of supports, including referrals to the Independent Legal Services, a Justice System Navigator, and support services; d. e. criteria for making decisions regarding investigations or laying charges; processes for interviewing complainants, including processes for taking a written statement or making an audiovisual recording; f. communicating with complainants, including keeping complainants informed and updated; g. timeframes; h. the use of communication assistance, including interpreters and intermediaries; i. the intersection between family violence and sexual violence; and j. review and complaint processes. The police guidelines (which are not operationally sensitive) should be made publicly available, published online and subject to ongoing review.
Recommendation 19
Offices of the Directors of Public Prosecutions should review and update their guidelines on responding to complainants of sexual violence to ensure their guidelines address, at a minimum, the following matters: a. b. the decision to prosecute or not prosecute; communicating with complainants, including keeping complainants informed and updated; c. processes for responding to complainants of sexual offences, including complainants who are within groups that are disproportionately reflected in sexual violence statistics; d. e. f. advising complainants of their right to seek independent legal advice and the availability of supports, including referrals to (where applicable) Independent Legal Services, a Justice System Navigator, witness assistance services, and support services; meeting with complainants before trial; preparation for trial, including the process of proofing complainants and court familiarisation; g. the trial process generally; h. i. j. k. the option of a pre-recorded evidence hearing; the availability of flexible evidence measures; the use of communication assistance, including interpreters and intermediaries; applications for access to a complainant’s personal, sensitive or confidential information, including sexual assault counselling communications; l. sentencing and victim impact statements; m. appeals; n. timeframes; o. resolving charges before trial; p. decisions to discontinue the prosecution; and q. review and complaint processes. The prosecution guidelines should be made publicly available, published online, and subject to ongoing review.
Recommendation 20
Federal, state, and territory police agencies, the Offices of the Directors of Public Prosecutions, and state and territory courts should ensure their online information on processes about sexual offence matters: a. is easy to find; b. c. explains to complainants what they can expect from the process; provides information about all trauma-informed and culturally-informed processes, including the availability of flexible evidence measures; d. is accessible to screen readers; e. f. g. is available in an accessible format, including in easy read and audio or video format with captioning; is available in multiple languages; and is kept up to date.
Chapter 8
Recommendation 21
The Standing Council of Attorneys-General should establish an appropriately funded expert multi-disciplinary working group to produce a model bill containing judicial directions to address myths and misconceptions in sexual offence trials, to be enacted by each state and territory (the Model Jury Directions Bill). The multi-disciplinary working group should include experienced criminal trial judges and consult nationally with criminal trial judges, researchers, and stakeholders about the Model Jury Directions Bill. Once adopted by states and territories, the effectiveness of the directions in the Model Jury Directions Bill should be subject to ongoing evaluation, including a review within five years after enactment.
Recommendation 22
The National Judicial College of Australia, the Australasian Institute of Judicial Administration, the Judicial College of Victoria, and the Judicial Commission of New South Wales, in collaboration with relevant experts, should be funded to publish a National Judicial Bench Book, to support and complement the Model Jury Directions Bill (Recommendation 21).
Recommendation 23
Relevant Commonwealth, state, and territory legislation should be amended, where necessary, to make admissible expert evidence about the impact of sexual violence on child and adult complainants.
Recommendation 24
The Standing Council of Attorneys-General should commission the establishment of an appropriately funded governing body of expert witnesses in sexual violence matters to: a. b. c. compile and maintain a panel of expert witnesses as an accessible resource for prosecution and defence who are seeking opinions, reports, and evidence from qualified experts about myths and misconceptions, including the impact of trauma on memory, responsive behaviour of complainants, and related topics; prepare materials for a flexible approach to expert evidence, including audiovisual recordings of experts giving evidence in the form of modules which address research on the impact of trauma on memory and responsive behaviour of complainants with a view to those recordings being admissible as part of the prosecution case; prepare summaries of those modules which may be used as the basis for agreed facts between prosecution and defence in sexual assault trials; and d. be a resource for the education of people who work in the criminal justice system, including by producing training videos for police, prosecutors, and defence counsel on myths and misconceptions and trauma-informed practice (discussed in Recommendation 11) and contributing to programs organised by the National Judicial College of Australia, Australasian Institute of Judicial Administration, judicial colleges, Offices of the Directors of Public Prosecutions, Legal Aid Commissions, Aboriginal and Torres Strait Islander legal services, bar associations, law societies, and police. Membership of the governing body should include experts and academics specialising in: memory, including the impacts of trauma on memory; responsive behaviour of people who have experienced sexual violence; sexual offences; and jury research. Members of the governing body should undertake this work in consultation with experienced trial judges; academics who specialise in jury research; counsel experienced in conducting sexual violence trials; and other relevant stakeholders.
Recommendation 25
The Commonwealth, and each state and territory, should enact legislation to provide that the evidence of an expert on sexual violence (see Recommendation 24) may be admissible in the form of an audiovisual recording, but the expert (or another expert who adopts the video) must be available for cross-examination if required.
Chapter 9
Recommendation 26
The Standing Council of Attorneys-General should establish an appropriately funded national taskforce to develop a national quality assurance framework for police interviewing of complainants of sexual violence. a. The national taskforce should, in relation to the police agency in each jurisdiction: i. use the quality assurance framework to review agency interviewing guidelines and work with the agency to ensure they are founded upon generally accepted evidence-based practices for interviewing complainants; ii. evaluate agency implementation of those guidelines, including by objectively evaluating interviewer and organisational performance; iii. provide feedback to the police agency, which would include communicating key elements of the research and identifying areas for improvement; and iv. receive reports back from the police agency in response to the feedback and areas identified for improvement. b. The taskforce should include: i. members with extensive high-level police governance experience; and c. ii. experts in the field of investigative interviewing of complainants of sexual violence and in the evaluation of interviewer training. As required, the taskforce should consult with relevant stakeholders, including: i. experts on the impact of trauma; ii. iii. iv. people who have experienced sexual violence; representatives from groups who are disproportionately reflected in sexual violence statistics and other experts who can advise on cultural sensitivity with respect to police investigations; experienced prosecution and defence counsel; and v. trial judges experienced in conducting sexual assault trials.
Recommendation 27
Federal, state, and territory police agencies should ensure that trauma-informed environments are available for interviewing complainants of sexual violence, including the provision of: a. a comfortable space; b. privacy; c. the ability to accommodate a support person or victim advocate; and d. disability access. Arrangements should be put in place to allow for statements to be taken from outside police premises, including at culturally appropriate locations.
Recommendation 28
The Commonwealth, states, and territories should enact or amend legislation, where necessary, to provide all adult complainants of sexual offence proceedings in County, District, or Supreme Courts with the option of giving their evidence (evidence-in- chief, cross-examination, and any re-examination) at a pre-recorded evidence hearing (recorded in the absence of a jury). Offices of the Directors of Public Prosecutions in each jurisdiction should adopt guidelines which ensure: a. an adult complainant is: i. ii. given a choice to give evidence either at a pre-recorded evidence hearing or at the time of trial; given information relevant to making that choice; and iii. advised that to help make the choice, they may speak with a Justice System Navigator or obtain advice from the Independent Legal Services (see Recommendations 1 and 9); and b. the prosecution will not make an application for a pre-recorded evidence hearing unless the complainant has been consulted and made an informed choice to proceed in that way.
Recommendation 29
The Australian, state, and territory governments should ensure that the use of recorded police statements and pre-recorded evidence hearings is monitored and reviewed, by collaborating to commission and fund relevant empirical research projects.
Recommendation 30
The Australian, state and territory governments should ensure that adequate technology, suitable for recording and playing evidence, is available to police agencies and courts, including in regional and remote areas.
Chapter 10
Recommendation 31
The Commonwealth, states, and territories should each legislate, establish, maintain and fund an intermediary scheme which ensures an intermediary is available in sexual violence matters for child complainants and complainants with communication needs at the police interview, pre-recorded evidence hearing, and trial stages. The Standing Council of Attorneys-General should establish an appropriately funded peak body to support the recruitment, professional development, and provision of intermediaries across Australia by: a. developing national accreditation standards for intermediaries (in consultation with Aboriginal Community Controlled Organisations) which respects and includes competency in working with First Nations complainants; b. c. creating an inter-jurisdictional register of intermediaries; and providing national professional development opportunities and access to vicarious trauma support.
Recommendation 32
Trial courts should extend ‘ground rules’ hearings about the evidence of complainants of sexual violence as an available option in all sexual offence trials, to be held on application by prosecution or defence or on the court’s own motion prior to the complainant giving evidence. Where necessary, the Commonwealth, states, and territories should enact legislation to facilitate this.
Recommendation 33
The Standing Council of Attorneys-General should: a. develop a strategy to address the national shortage of interpreters to assist complainants of sexual violence in the criminal justice system; and b. coordinate the Australian, state and territory governments to: i. ensure interpreters are consistently, efficiently, and appropriately engaged by justice agencies for complainants of sexual violence, from the point of police reporting to finalisation of the criminal process (including considering the mechanisms for engagement of interpreters by courts and tribunals as identified by the Judicial Council on Cultural Diversity in the ‘Recommended National Standards for Working with Interpreters in Courts and Tribunals’); ii. develop national standards for working with interpreters on sexual violence matters at the police and prosecution stage (in consultation with relevant stakeholders, including police agencies, interpreting agencies and services, people who have experienced sexual violence, and Aboriginal Community Controlled Organisations); and iii. provide for vicarious trauma support and training in trauma-informed principles for interpreters who work with complainants of sexual violence.
Recommendation 34
The Commonwealth, states, and territories should review and where necessary amend legislation, and courts should amend court rules, to implement flexible measures for victims of sexual offences to make and deliver their victim impact statements: a. in a flexible format, including written, pre-recorded audio, or pre-recorded audio-visual statements; b. utilising illustrative formats, such as drawings and photographs; c. for written statements: d. i. read aloud by the victim in an open or closed court (with or without a screen) or via remote witness facilities and with a support person; or ii. iii. read aloud by someone nominated by the victim; or tendered without being read aloud; and for pre-recorded audio or pre-recorded audio-visual statements: i. ii. iii. played in an open court; or played in a closed court; or tendered without being played in court.
Chapter 11
Recommendation 35
1. 2. 3. Jurisdictions that have recently adopted affirmative models of consent, or that are proposing to do so, should evaluate these reforms within five years of the reforms commencing. Tasmania (which has had an affirmative model of consent since 2004) should also conduct a review, within a reasonable timeframe. The purpose of the evaluation is to ensure that a best practice affirmative model of consent is identified for the purposes of national harmonisation. The Standing Council of Attorneys-General should commission, and ensure appropriate funding for, the Australian Institute of Criminology to prepare the evaluation criteria and conduct the evaluation. The evaluation should assess whether the reforms are: a. operating in a trauma-informed manner for complainants and consistently with the accused person’s right to a fair trial; and b. having any impact on: i. jury directions; ii. the presentation of prosecution and defence cases at trial; iii. cross-examination of complainants and accused persons; and iv. community understandings of consent. 4. The Australian Institute of Criminology should liaise with court researchers (see Recommendation 3) to obtain data for the evaluation process. 5. People who have experienced sexual violence, police, prosecutors, defence lawyers, and judicial officers should be consulted as part of the evaluation process. 6. The Australian Institute of Criminology should provide the results of the evaluation to the Standing Council of Attorneys-General to consider the adoption of a nationally harmonised affirmative model of consent.
Recommendation 36
The Commonwealth, states, and territories, with the assistance and oversight of the Standing Council of Attorneys-General, should review their legislation to ensure there is broad national consistency in the list of matters that do not, on their own, constitute consent (negative indicators of consent). Examples (based on existing legislation across the jurisdictions) include: a. previous consent to a sexual act, of that kind or any other kind, either with the accused person or someone else; and b. absence of resistance to sexual activity. Note: These are expressed as general terms. The ALRC seeks to achieve broad consistency nationally, rather than being prescriptive about how such negative indicators should be expressed in legislation.
Recommendation 37
1. 2. The Commonwealth, states, and territories, with the assistance and oversight of the Standing Council of Attorneys-General, should review relevant legislation, and amend that legislation where necessary, to ensure there is broad national consistency in the list of circumstances where there is no consent. The circumstances where there is no consent should be considered and agreed upon, in respect of each of the following categories: a. b. where the person does not do or say anything to communicate consent; where the person has no capacity to consent, for example because they were: asleep, unconscious, or incapable of understanding the nature of the act; or because the person was incapacitated by drugs or alcohol; c. where the person participates because of: i. threats or use of force or harm (including economic or financial harm) to themselves, another person, an animal, or property; ii. intimidation or coercion, including in the context of domestic or family violence; iii. unlawful detainment; or iv. an abuse of a position of authority, trust, or dependency; d. where the person has a mistaken belief as to the identity of the other person or as to the nature or the purpose of the act; e. where the person participates because of a fraudulent inducement or deception; or f. where, contrary to an agreement that a condom would be used, there was intentional non-use, removal of, or tampering with, a condom. Note: The ALRC seeks to achieve broad consistency nationally. The ALRC emphasises that the descriptions given in (2)(a)–(f) are descriptions of categories (which are based on existing legislation across the jurisdictions). It is for the states and territories, through the Standing Council of Attorneys-General, to try to ensure consistency of categories.
Recommendation 38
The Australian Government should resource and support ongoing public education about consent. The Australian Government should build upon existing initiatives, with an emphasis on identifying gaps and meeting the needs of different communities. a. Education programs should seek to explain: i. the importance of consent; ii. who can consent; iii. iv. v. vi. vii. viii. that consent requires free and voluntary agreement; that not doing or saying anything to communicate consent is not consent (and include examples of ways that consent can be communicated); that steps should be taken by each participant to see if other participants are consenting (and include examples of steps that could be taken); that consent is required every time for every type of sexual activity (see Recommendation 36); that there are circumstances in which there is no consent (see Recommendation 37); and that sexual activity with a person who does not consent is a criminal offence. b. Education programs should be: i. ii. informed by international technical guidance on sexuality education; informed by evidence-based research on primary prevention of gender- based violence (consistent with the National Plan to End Violence Against Women and Children 2022–2032) and on how best to generate lasting social change; iii. accessible and up to date; and iv. specific to their context and audience (rather than general). c. Education programs should be tailored to reach all groups in the community, with a focus on: i. boys and young men; ii. specific age groups including children at different developmental stages, young people, and older people; iii. neurodiverse people; iv. people with communication difficulties (who may have difficulties communicating consent); v. vi. people with impaired capacity to consent; people with impaired capacity to understand whether or not other participants are consenting; vii. First Nations people; d. viii. ix. people in remote, rural, and regional communities; and people working in institutional settings with children, people with disabilities, and people in aged care. Education programs should be developed through a process of participatory design, which includes children and young people, older people, First Nations communities, LGBTQIA+ communities, neurodiverse people, people with disabilities, and culturally and linguistically diverse communities.
Chapter 12
Recommendation 39
Each state and territory should amend relevant legislation, where necessary, and enact a provision that fully adopts section 41 of the Evidence Act 1995 (Cth).
Recommendation 40
Judicial education should cover the duty to intervene imposed by section 41 of the Evidence Act 1995 (Cth), to ensure its requirements are well understood and consistently applied.
Recommendation 41
The Standing Council of Attorneys-General should commission and ensure appropriate funding for research, within five years of all jurisdictions adopting section 41 of the Evidence Act 1995 (Cth), to evaluate whether the provision, combined with judicial education, is reducing improper questioning and increasing appropriate judicial intervention.
Recommendation 42
The Commonwealth, states, and territories should amend relevant legislation, where necessary, to adopt a consistent approach to cross-examination by unrepresented accused persons in criminal proceedings by: a. prohibiting unrepresented accused persons from personally cross-examining any complainant or family member of the complainant (a protected witness), in all sexual offence proceedings, in all courts; b. providing that unrepresented accused persons are only permitted to cross- examine a protected witness through a person appointed by the court to ask questions on their behalf; c. providing that if unrepresented accused persons wish to cross-examine a protected witness, the court must order that a person be appointed to ask questions on behalf of the accused person for the purposes of cross- examination only; d. providing that any person appointed by the court for this purpose: i. must be a legal practitioner; and ii. is indemnified when providing such a service, provided they act in ‘good faith’; e. f. g. providing that Legal Aid Commissions are funded and required in each jurisdiction to provide this service, irrespective of the accused person’s capacity to pay for representation; providing that appointed persons must not put improper questions to the protected witness on behalf of the accused person; providing that judicial officers must advise accused persons of: i. ii. their right to a court-appointed legal practitioner; and the consequences (in terms of being able to lead evidence which contradicts, challenges, or discredits a witness) if they decline and decide not to cross-examine a witness; h. providing that judicial officers must inform juries that: i. it is normal process for protected witnesses not to be questioned by an accused person directly and for legal practitioners to be appointed for that purpose; and ii. no inference (against or in favour of the accused person or protected witness) may be drawn from this process.
Recommendation 43
The Standing Council of Attorneys-General should commission and ensure appropriate funding for the Australian Institute of Criminology to conduct research: a. on how confidential communication and sexual assault counselling privilege provisions are operating in practice (including the adequacy of current subpoena processes); and b. to identify areas for improvement, consistent with the underlying public interest rationale for the provisions. The Standing Council of Attorneys-General should, on the basis of that evaluation, consider whether sexual assault counselling communications should be absolutely privileged or admissible with the leave of the court (and if so, what the criteria for granting leave should be).
Recommendation 44
Section 4(1) of the Sexual Offences (Evidence and Procedure) Act 1983 (NT), dealing with sexual reputation, should be amended to provide that evidence of a complainant’s sexual reputation is not admissible in a sexual offence proceeding. This absolute prohibition should extend to all sexual offence complainants. The availability of leave (in respect of section 4(1)(a)) and the term ‘chastity’ should be removed.
Recommendation 45
New South Wales should introduce a discretionary leave model for the admission of sexual history evidence, consistent with the approach adopted in all other jurisdictions.
Chapter 13
Recommendation 46
1. Commonwealth, state, and territory laws relating to civil proceedings, as well as court and tribunal processes (including processes relating to their conciliation, mediation, and hearing functions) should be amended, where reasonably practicable, so that the following measures, mechanisms, and evidentiary rules are available in any civil proceeding in which an allegation of sexual violence is raised: Delay a. Prioritise for hearing (and for any pre-recorded evidence hearing) matters involving children, or people with a cognitive impairment, who allege they have experienced sexual violence. Flexible evidence measures b. c. d. e. Establish ‘ground rules’ for appropriate questioning of witnesses, and appropriate flexible evidence measures, as part of case management hearings. Record evidence given at trial by witnesses who allege having experienced sexual violence to avoid the need for that evidence to be given again on any re-trial. Any person who alleges they have experienced sexual violence should have access to the following flexible evidence measures: i. giving evidence with a one-way screen or other device to avoid visual contact with the person alleged to have used sexual violence; ii. giving evidence from a remote location within the court precinct via video link; iii. giving evidence from a remote location outside the court precinct via video link; iv. v. having a support person present while giving evidence; and having a canine companion present while giving evidence. A court should have explicit discretion to close the court when a person who alleges having experienced sexual violence gives evidence, and f. the court should give significant weight to the potential for the person to experience trauma if they were to give evidence in open court. Make available Indigenous Liaison Officers to assist courts to operate in culturally safer ways, and to assist First Nations people to engage with court proceedings, whether as a party, witness, or otherwise, in relation to matters in which sexual violence is a relevant issue. Interpreters g. Where necessary, make available an appropriately qualified interpreter trained in trauma-informed principles (see Recommendation 33) to interpret for a person who alleges sexual violence. Intermediaries h. Make available an intermediary for witnesses who are a child or have a communication difficulty and allege having experienced sexual violence. Improper questioning i. Relevant evidence legislation should be amended to introduce a provision equivalent to section 41 of the Evidence Act 1995 (Cth) (where not already enacted in the particular jurisdiction), requiring a court to intervene when an improper question is put to a witness. Cross-examination j. Prohibit personal cross-examination by an unrepresented person of a witness when there is an allegation of sexual violence between the unrepresented person and the witness (or an allegation of violence against a family member of the witness) and provide for any cross- examination to be conducted by a legal practitioner who is made available without cost to the unrepresented person. Admissibility of evidence k. Require that the leave of the court or tribunal be obtained to compel the production of, or to produce, or to adduce, evidence of confidential sexual assault counselling communications made by a party or witness who alleges having experienced sexual violence, unless the party or witness has waived confidentiality. In considering whether leave should be granted, the court or tribunal should take into account the probative value of the evidence and the prejudice or harm that would be caused by the loss of confidentiality. l. Exclude evidence of the sexual reputation of a witness who alleges having experienced sexual violence and require that the leave of the court be obtained for the admission of evidence about that person’s sexual history. m. Provide for admissibility of expert evidence regarding the nature and effects of sexual violence upon a person alleging having experienced sexual violence (including effects on memory, the nature and effects of trauma, and the nature of sexual violence), to be used for the purpose of assessing the credibility and reliability of the person’s evidence. The measures or mechanisms outlined above should, unless the court or tribunal otherwise determines, be made available only when the alleged sexual violence is capable of constituting a criminal offence. 2. Training and education should be made available to judges, tribunal members, court and tribunal staff, and lawyers involved in civil proceedings involving allegations of sexual violence in relation to: a. Trauma-informed practice, including cultural competence and cultural safety. b. c. d. Working with interpreters in sexual violence matters. Working with intermediaries in sexual violence matters. The duty to intervene to prevent improper questioning, to ensure that the requirements of a provision equivalent to section 41 of the Evidence Act 1995 (Cth) are well understood and consistently applied. 3. Courts and tribunals should, where appropriate, publish a bench book relating to civil matters involving allegations of sexual violence.
Recommendation 47
Commonwealth, state, and territory complaint bodies and regulators (such as the Commonwealth Ombudsman, Australian Human Rights Commission and Fair Work Ombudsman), non-tribunal government services, and private mediators and arbitrators should review their processes to: a. enhance trauma-informed practice; b. avoid perpetuating or giving effect to myths and misconceptions about sexual violence; c. train staff in trauma-informed practice (including cultural competence and cultural safety) and common myths and misconceptions about sexual violence; and d. facilitate the communication needs of people who have experienced sexual violence.
Chapter 14
Recommendation 48
The Sex Discrimination Act 1984 (Cth) should be amended so that the prohibitions on sexual harassment (as defined in s 28A of the Act) apply beyond those areas of activity specified by ss 28B–28L of the Act to all areas of public activity.
Recommendation 49
The Australian Government should consider within 24 months of this Report whether, and how best, to amend the Sex Discrimination Act 1984 (Cth) so that the prohibitions on sexual harassment apply universally.
Recommendation 50
The remedies available under the Australian Human Rights Commission Act 1986 (Cth) for addressing a contravention of the prohibition on sexual harassment in the Sex Discrimination Act 1984 (Cth) should be clarified or extended to include the capacity for the court to make orders where appropriate: a. restraining a respondent from engaging in particular conduct (such as approaching the applicant, or attending a particular place); b. requiring a respondent to take part in a program of counselling, training, mediation, rehabilitation, or assessment; c. requiring a respondent, conducting the business or undertaking in which the sexual harassment has occurred, to take corrective action to prevent further sexual harassment in the business or undertaking; and d. requiring a respondent to pay a civil penalty in relation to a breach of a prohibition on sexual harassment in the Sex Discrimination Act 1984 (Cth).
Recommendation 51
The Australian Human Rights Commission Act 1986 (Cth) should be amended such that a person found to have contravened the positive duty in s 47C of the Sex Discrimination Act 1984 (Cth) may be ordered to pay a civil penalty.
Chapter 15
Recommendation 52
Section 570 of the Fair Work Act 2009 (Cth) should be amended for sexual harassment proceedings, such that it is equivalent to s 46PSA of the Australian Human Rights Commission Act 1986 (Cth), which is the provision that applies to the recovery of legal costs in sexual harassment proceedings under the Sex Discrimination Act 1984 (Cth).
Recommendation 53
The Fair Work Act 2009 (Cth) should be amended to include a provision (equivalent to that contained in the Sex Discrimination Act 1984 (Cth)) imposing a positive duty on an employer, or a person conducting a business or undertaking, to take reasonable and proportionate measures to eliminate, as far as possible, the sexual harassment of workers. A person who breaches the positive duty should be liable for payment of a civil penalty.
Recommendation 54
The remedies available under the Fair Work Act 2009 (Cth) for a breach of the prohibition on sexual harassment should be clarified or extended to include capacity for a court or the Fair Work Commission (in arbitration or when making a stop sexual harassment order) to make orders, where appropriate: a. restraining a respondent from engaging in particular conduct (such as approaching the applicant, or attending a particular place); b. requiring a respondent to take part in a program of counselling, training, mediation, rehabilitation, or assessment; and c. requiring a respondent, conducting the business or undertaking in which the sexual harassment has occurred, to take corrective action to prevent further sexual harassment in the business or undertaking.
Recommendation 55
The Australian Government should, within 24 months of this Report, conduct a review of the operation of the regime in the Fair Work Act 2009 (Cth) addressing sexual harassment. Subject to the outcome of that review, a regime incorporating tribunal, court, and regulatory processes like those provided for in the Fair Work Act 2009 (Cth) should be made available in other sectors (for example, in the higher education sector) or across all areas of activity in which sexual harassment is prohibited in the Sex Discrimination Act 1984 (Cth).
Chapter 16
Recommendation 56
Each state and territory victims of crime scheme should, where necessary, be amended in relation to sexual violence matters to: a. extend time limits for applications to be at least 10 years from the date of the most recent act of violence for which assistance is sought, and provide a discretion to accept applications made outside the time limit based on a low threshold; b. remove any requirement for an applicant to have disclosed the violence to another person, or to have formally reported or cooperated with authorities, as a condition of receiving financial assistance or as a basis for any reduction in the financial assistance provided, and not use non-reporting as determinative of, or necessarily essential to, the assessment of whether the violence occurred; c. d. remove requirements to prove injury as a condition of making a recognition payment, and provide access to a recognition payment as an alternative to proving injury in order to obtain a compensation payment. Injury should be presumed in relation to medical, counselling, and related expenses; not notify the person alleged to have used sexual violence that an application has been made, or that a financial assistance payment has been made, where the applicant has a genuine belief of a risk of harm to the applicant or to a person associated with the applicant; e. not reduce any payment on the basis that the person alleged to have used sexual violence may benefit, and instead use other measures to safeguard payments made to an applicant; and f. introduce recognition statements and recognition meetings.
Recommendation 57
Each state and territory government should conduct a review of its victims of crime scheme to consider the following (where applicable) in relation to all applications (including, but not limited to, sexual violence matters): a. ensuring that the process is victim-centred and trauma-informed, including by: i. ensuring that decision-makers are appropriately trained; ii. reducing complexity of the application process; and iii. reducing the time taken to process applications; b. c. setting out guiding principles for the operation of the scheme; with the assistance and oversight of the Standing Council of Attorneys-General, providing equality of access across all victims of crime schemes and providing for more equitable and consistent awards of compensation or financial assistance across all jurisdictions; d. applying the standard of proof that ‘on the balance of probabilities’ the wrongdoing occurred, rather than any higher standard; e. prohibiting any criminal activity by the applicant being used as a ground for refusal or reduction of an award, and ensuring that any discretion to refuse or reduce an award by reason of any contributory conduct is not misused; f. on request, requiring decision-makers to provide written reasons for decisions; and g. recognition payments.
Chapter 18
Recommendation 58
The Commonwealth, states, and territories should, where necessary, adopt, or review and amend, legislation to make restorative justice for sexual violence widely available.
Recommendation 59
Restorative justice legislation should provide clarity about: a. its aims, which should include: i. empowering people who have been harmed and responding flexibly to their needs; ii. respecting all participants and ensuring their safety; and iii. repairing harm; b. the voluntary nature of restorative justice — no one is under any obligation to participate; c. d. the confidentiality of the restorative justice process and limits on confidentiality; its availability in cases involving children and young people, and the additional screening and supports that must be provided in these cases; e. the relationship between restorative justice and other justice processes, including: i. when and how matters that are the subject of criminal charges can be referred for restorative justice, and how restorative justice outcomes may influence criminal justice outcomes in these cases (Recommendation 60); ii. recognition that restorative justice can happen independently of other justice processes; f. the obligation on providers of restorative justice for sexual violence to work within national guidelines (Recommendation 61); and g. the bodies responsible for oversight of restorative justice (Recommendation 62).
Recommendation 60
Restorative justice legislation should specify that restorative justice is available: a. where a person who has experienced sexual violence has not reported the violence to the police; b. where a person who has experienced sexual violence has reported to police, but there were insufficient grounds to file charges or the prosecution was discontinued, subject to safeguards to ensure the charging and prosecution process is fair and transparent; c. during criminal proceedings as part of the accused person being referred to a diversionary program that provides for a restorative justice process; d. e. after a guilty plea or conviction and before sentencing; and at any time after sentencing, including as part of parole proceedings.
Recommendation 61
The Australian Government, together with state and territory governments, should develop national guidelines for the safe delivery of restorative justice for sexual violence, drawing on the guidelines used in the Australian Capital Territory, New Zealand; and in Victoria for family violence. The national guidelines should be developed with input from people who have experienced sexual violence, sexual violence services, Aboriginal Community Controlled Organisations, community organisations (including those representing groups who are disproportionately reflected in sexual violence statistics), and restorative justice researchers and providers.
Recommendation 62
The Commonwealth, states, and territories should ensure designated bodies are responsible in each jurisdiction for providing oversight of restorative justice, including consistent implementation of the national guidelines (Recommendation 61). The oversight bodies should include First Nations representatives and representatives from groups who are disproportionately reflected in sexual violence statistics. The Commonwealth oversight body should: a. b. c. establish and publish national training standards; establish and publish national accreditation criteria; and provide national coordination and support national information sharing, knowledge building networks, and communities of practice. The Commonwealth, state, and territory oversight bodies should: d. e. establish and manage complaints processes in their jurisdiction; ensure transparency and accountability in relation to the funding of restorative justice; and f. evaluate programs and collect and publish data to provide transparency and inform program and policy development. How programs are evaluated, and data is collected and published, should be consistent with principles of Indigenous data sovereignty.
Recommendation 63
The Australian, state, and territory governments should jointly provide funding to support First Nations communities to design, build, and deliver accredited restorative justice programs for First Nations people. First Nations people should be free to access restorative justice at any restorative justice service.
Recommendation 64
The Australian, state, and territory governments should make sure restorative justice is well resourced and supported by ‘wrap around’ services, including therapeutic treatment programs for people responsible for sexual violence.
